' TALAAT QAYYUM QURESHI, J.---In response to various advertisements published in different dailies by the N.-W.F.P. Public Service Commission the petitioners applied for the posts mentioned hereunder:-- {{TABLE}} W.Ps. No, Posts applied for 239, 514, 944, .1134 Librarians and Directors Physical and 1234 of 2002, and Education (BPS-16).
374 of 2003.
873 to 876, 882, 883, Lecturers (BPS-17)
901, 965, 980, 1188, 1207, and 902 of 2002 739 of 2002 Research Officer/Assistant Director (BPS-17), 620 of 2000 Assistant (BPS-11), 703, 704 & 788 of 2002 Instructors (BPS-17) and 247 of 2003 and 431 of 2002 Additional Public Prosecuter/ Additional Govt. Pleader (BPS-17) {{TABLE}} ' They were duly examined and were recommenced for appointment against the posts they applied for by the N.-W.F.P. Public. Service Commission.
' The petitioners were shocked when they received their appointment letters which were issued for their appointment on "Contract basis" by the Appointing Authorities of the respective departments.
They (petitioners) have questioned their appointment letters on "contract basis" through writ petitions in hand. Since all the writ petitions contain similar facts and same question of law, therefore, we tend to decide all the above mentioned petitions through this single judgment.
2. Messrs Qazi Muhammad Jamil, Abdul Aziz Kundi, Abdul Samad Khan Bannu, Syed Muhammad Attique Shah, Muhammad Jamil Khan, Shakil Ahmad, Syed Muhammad Ali Shah, Shahbaz Khan, Asghar Ali, Wali Khan Afridi, Muzammil Shah Khattak, and Ijaz Anwar Khan, Advocates the learned counsel representating the petitioners in all the writ petitions argued that various posts were advertised in different Dailies on regular basis by the N.-W.F.P. Public Service Commission in different Departments in response whereof the petitioners applied to N.-W.F.P. Public Service Commission. They were duly examined and recommended by N.-W.F.P. Public Service Commission for appointment of their respective jobs. When the petitioners received notifications of their appointment, all the notifications stipulated their (petitioners) appointments on contract basis, which was not only against the advertisement but were against the Rules, Regulations and Law.
3. It was also argued that the impugned notifications to the extent of transferring the appointment on regular basis to the one on contract basis was without lawful authority and petitions were not bound by the same.
4. It was also argued that selection to the posts had initiated and commenced before the formulation of so-called policy, which prescribed the appointment to every vacancy occurring in the Government Department to be made on contract basis, therefore, the said policy was not applicable to the petitioners, moreover, such policy cannot deviate from the principles of Law contained in N.-W.F.P. Civil Servants Act 1973.
5. It was also argued that the impugned Notifications were against the concept of locus poenitentia and also against the doctrine of legitimate expectancy.
6. It was further argued that the respondents had discriminated the petitioners. In that on the one hand the impugned Notifications appointing the petitioners on contract basis were issued and on the other hand many other candidates who had been examined by the N.-W.F.P. Public Service Commission on the same criteria were appointed on regular basis. The respondents, therefore, picked and chose candidates of their own liking for appointment on regular basis, whereas the petitioners who had equally been recommended for the posts against which they had applied were\ ignored for appointment on regular basis due to no fault on their part.
7. On the other hand Mr. Tariq Javed the learned Deputy Advocate General representing the respondents argued that the petitioners have no vested rights, therefore, the writ petitions filed by them are not maintainable.
8. It was also argued that the Government of N.-W.F.P. Had made a policy for appointment on Contract basis and the petitioners are appointed as such according to the said Policy.
9. We have heard the learned counsel for the parties at length and perused the record.
10. The admitted position in all the cases is that various departments placed requisitions before the N.-W.F.P. Public Service Commission (hereinafter referred to as the Commission) for recruitment of various officials against the posts mentioned in those requisitions. The Commission invited applications from suitable candidates to fill up the posts mentioned therein on regular basis. The petitioners and other candidates being qualified to apply, submitted their applications in prescribed form. They were examined and all these who were found fit recommended for appointment on regular basis by the Commission. It is worth-mentioning here that under Rule 10 of N.-W.F.P. Civil Servants (Appointment, Promotion and Transfer) Rules, 1989 initial appointment to the posts in various Pay Scales is made:--
(a) If the post falls within the purview of the Commission, on the basis of examination or test to be conducted by the Commission OR
(b) If the post does not fall within the purview of the Commission, in the manner as may be determined by Government.
' In the cases in hand all the posts fell within the purview of the Commission, therefore, on the basis of examination or test which was conducted by the Commission, the petitioners, as mentioned above, were recommended for appointment. The process of appointment had been initiated and commenced in the year 1999 of 2000. It is so happened that a meeting of the Provincial Cabinet of N.-W.F.P. Was held on 1-7-2001 for budgetary measures for Financial year 2001-2002, Various budgetary measures were approved by the Provincial Cabinet. It was also decided in the said meeting that:-- "All fresh recruitments when approved by the Governor will be on contract basis and not on regular basis".
The decision of the Cabinet taken on 1-7-2001 was termed as "Policy" for appointments. Although the Commission had recommended the petitioners for recruitment/appointment on regular basis much before the Cabinet decision dated 1-7-2001, but the Appointing Authorities without caring for the recommendations of the Commission, issued appointment letters of the petitioners on contract basis.
11. The question that requires determination in these cases is as to whether the posts which were to be filled in on regular basis could be converted into that of contract basis with the decision of the Provincial Cabinet without amending/changing the existing law, Rules and Regulations, answer to this question is in negative for the reasons.
' Firstly, the cases which are to be brought before the Cabinet, manner of submission of cases to Cabinet, method of disposal and procedure regarding Cabinet meeting has been prescribed in Rules of Business 1985. In Rule 19 cases are to be brought before the Cabinet have been mentioned, Rule 20 ibid prescribes the method of disposal, rule 25 lays down the manner of submission of cases to Cabinet, Rule 22 prescribes the procedure *ebau'ding the Cabinet Meeting and Rule 25 lays down how action on Cabinent's decision is taken. The decision dated 1-7-2001 of the Provincial Cabinet shows that the meeting of the Provincial Cabinet was held for approval of various budgetary measures, for the Financial year 2001-2002. While deciding the budgetary measures for the said Financial year, the Cabinet also decided that all fresh recruitment when approved by the Governor, will be on contract basis and not on regular basis. This decision was taken only keeping in view the financial implications for the recruitment of various Civil Servants, without any propery summary mentioning therein the existing laws governing the terms and conditions of the Civil Servants, and the effect of changing the regular service to that on contract basis. Neither any proposal for amendment in the existing law, Rules and Regulathing Was made nor any draft of the Ordinance or order proposing the amendments were submitted to the Cabinet duly vetted by the Law Department. In nutshell the decision of the Cabinet dated 1-7-2001 shows that change of posts from regular basis to that of contract basis was not on the Agenda of the Cabinet at all, therefore, the proper procedure as mentioned in Rules of Business was not adopted, therefore, the decision dated 1-7-2001 with regard to the change of recruitment Policy was against the ibid Rules.
' Secondly, the said "Policy" or the Provincial Cabinet's decision taken on 1-7-2001 could not be made applicable with retrospective effect if the said decision of the Provincial Cabinet was to be implemented, the same should have been made effective prospectively. In the cases in hand the process of petitioners' appointment was initiated and commenced in 1999/2000. They had submitted their applications for appointment against regular posts. Before Cabinet's decision dated 1-7-2001 they were recommended by the Commission for appointment against regular posts therefore, valuable rights had accrued to petitioners which cannot be taken away by any policy or Notification retrospectively as held by the Hon'ble Supreme Court of Pakistan in the following Judgments:--
(i) Collector Customs and Central Excise Peshawar v. Messrs Raees Khan Ltd. (1997 SCMR 83).
(ii) Messrs Army Welfare Sugar Mills Ltd. v. Federation of Pakistan (1992 SCM R 1652),
(iii) Muhammad Suleman and others v. Abdul Ghani (PLD 1979 SCMR 190) and
(iv) Farrukh Hussain Zaidi v. Chairman WAPDA and five others (2001 M LD 789).
' Thirdly, the petitioners were desirous of becoming "Civil Servants" on regular basis as such they had applied, qualified and were recommended by the Commission. They were not aware of the fact that after qualifying the test/examination they would not become Civil Servants, because as per subsection (ii) (b) of section 2 of N.-W.F.P. Civil Servants Act, 1973, a person who is employed on Contract, or on work-charged basis, or who is paid from the contingencies was not included in the definition of Civil Servants. The decision of the Cabinet dated 1-7-2001 had in fact deprived the petitioners to become Civil Servants.
' Fourthly, no doubt under section 25 of the N.-W.F.P. Civil Servants Act 1973, appointment could be made on contract basis but if the appointments were to be made on contract basis, as per requirements of the said section, the Governor or any person authorised by the Governor in that behalf was to specify the terms and conditions in each case, for appointment of a person on Contract basis. In the cases in hand no conditions were specified before the petitioners were appointed on Contract basis, therefore, the provisions of section 25 of the ibid Act were also violated.
' Fifthly, rule 4 of N.-W.F.P. Public Service Commission (Functions) Rules, 1983 prescribes that the Commission shall not conduct test for initial recruitment to the posts which are filled on contract basis for a specified period. The relevant rule is reproduced hereunder for convenience:-- "Notwithstanding anything contained in rule 3, the Commission shall not conduct test for initial recruitment to posts, which are filled.--
(a) on contract basis for a specified period; or
(b) ------------- In the said Rule explanation has been given according to which "Regular basis" means other than ad hoc basis, or on contract, or on temporary basis for specified period. The recommendation of the Commission shows that the same were for appointment of petitioners on regular basis and not on contract basis.
'Sixthly, the impugned Notifications are against the doctrine of promissory estoppel. Various Departments, as mentioned above, placed requisitions for filling up various posts before the Commission. These posts were to be filled in on regular basis. Various advertisements were published in different Dailies, whereby applications from suitable candidates were invited, they were tested/examined and recommendations for their appointment on regular basis were made by the Commission. The respondents, therefore, not only by the written words, but by the conduct of their officials made to the petitioners clear that they would be appointed on regulars basis, therefore, unequivocal promise which is intended to create legal relations or effect a legal relationship to arise in future, knowing or intending that it would be acted upon by the petitioners to whom promise was made and that in fact it would be so acted upon by the Appointing Authorities, the promise thus made was binding on the party making it and it would not be entitled to go back upon it, if it would be inequitable to allow it to do so without having regard to the exercise which had taken place between the parties and this would be so irrespective of whether there is any pre- existing relationship between the parties or not. The doctrine of promissory estoppel need not be inhibited by the same limitation as estoppel in the strict sense of the terms. It is an equitable principle evolved by the Courts for doing justice and there is noreason why it should be given only a limited application by way of defence. This principle was adapted in Pakistan through Ministry of Finance Economic Affairs and another v. Facto Belarus Tractors Limited (PLD 2002 SC 208), Pakistan through Secretary, Ministry of Commerce and 2 others v. Salahuddin and 3 others (PLD 1991 SC 546)
And Messrs Motilal Padampat Sugar Mills Co. Ltd. v. The State of Uttar Pradesh and others (AIR 1979 SC 621).
Seventhly, the impugned Notifications are against the principles of locus poenitentia. In the cases in hand after completing the codal formalities the Commission made recommendations for appointment of petitioners on regular basis even the Appointing Authority in cases of Director Physical Education and Librarian also recommended their appointments on regular basis in the following words:-- "As per existing Policy, fresh recruitment to various posts are required to be made on contract basis. However, the Higher Education Department proposes that the above mentioned twelve recommended (Mala/Femle) of the N.-W.F.P. Public Service Commission may be appointed as D.S.Es/Librarian (BPS-16) on regular basis in relaxation of ban on recruitment, as all the process of their selection was completed before the enforcement of this policy. It is further added that the Governor N.-W.F.P. Has recently approved the appointment of Ninety Six (96) Lecturers selected by the N.-W.F.P. Public Service Commission, on regular basis (Flag-E).
The recommendations of the Commission created a valuable right to claim benefit of appointment on regular basis. What to speak of the recommendations and creation of valuable right, the recommendations were 6 acted upon also by taking decisive step by respondents. The valuable rights created could not be taken away to the detriment of those rights. Wisdom in this regard has been drawn from Muhammad Aslam Khaki v. Vice-Chancellor, Gomal University, D.I. Khan and 2 others (PLD 1980 Peshawar 128).
Eightly, the Civil Servants Act, 1973 and Rules framed thereunder known as N.-W.F.P. Civil Servants (Appointment, Promotion and Transfer) Rules, 1989 laid down the method of initial appointment, Appointing Authority, Probation, Confirmation and Seniority of Civil Servants. The full mechanism has also been provided under the N.-W.F.P. Public Service Commission Ordinance 1978 and Rules framed thereunder whereby the entire Scheme of appointment of Civil Servants has been mentioned. The Rules Regulations and Law governing the appointment of Civil Servants have not been changed or amended till date by the competent authority, therefore, without amending the Law and Rules, the Provincial Cabinet could not import anything which would change the entire structure of the Service. If the Cabinet wanted to convert regular appointment into that of contract, then it could purpose the requisite amendment in Law and Rules, which in the cases in hand was not done.
' Ninethly, the petitioners have been discriminated. They have not been given the same treatment which was given to others, who were examined/tested on the same touchstone by the Commission, were I recommended and were appointment on regular basis even after the decision of the Cabinet dated 1-7-2001 or the formation of "Policy" through the following Notifications:-- {{TABLE}} Notifications No, Dated SO III(IND) TE/3-5 of 2001 5-12-2001.
SO III (IND) TE/8-11 of 2000 5-1-2002.
SO (Colleges) 2-1/ of 2001 Vol. VIII. 11-1-2002.
SOE (ii) ED 3 (81) 98 22-1-2002.
(i) 2307-3080/A-14/SET/Req. Apptt.
And 29-1-2002, SO I (H) 4-1/2001 29-2-2002. {{TABLE}}
12. It is not understandable as to why the blue-eyed were appointed on regular basis and the petitioners, who equally deserved the same treatment were discriminated. The respondents have, therefore, violated the provisions of Article 25 of the Constitution of the Islamic Republic of Pakistan, 1973.
' Keeping view the above discussion we accept the writ petitions and declare that the petitions had been duly recommended by the N.-W.F.P. Public Service Commission for appointment against regular posts, valuable right has therefore, been accrued in their favour which could not be taken away by a Cabinet decision without amending the Law and Rules, We, therefore, set aside the impugned Notifications and further declare that the petitioners shall be deemed to have been appointed on regular basis. There shall be no orders as to costs.